01/11/2013

Eugene Kontorovich on Article I and Material Support for TerrorismMichael Ramsey

At Volokh Conspiracy, Eugene Kontorovich has an interesting series of posts on the question whether the U.S. can apply the Material Support for Terrorism statute to terrorists who have no connection with the United States (the case involves people allegedly fighting against the government of Somalia, who committed acts in Somalia involving exclusively Somali targets).

A few days before Christmas, the U.S. indicted three men at the Federal District courthouse in Brooklyn for plotting suicide bomb attacks. This is an extraordinary, almost unique case: none of the people or conduct has any connection to the U.S. The defendants are foreign nationals, captured by some African government on their way to join up with al-Shabab, the Somali Islamist group. To be clear, there is no suggestion that they planned to target American nationals or facilities, or had even ever been to this country before.

This is an aggressive – and unconstitutional – assertion of universal jurisdiction. The U.S. is prosecuting foreign nationals for their participation in a foreign civil war. Congress, as the Supreme Court recently reminded us in the Health Care decision, is truly one of limited regulatory powers, and thus the first question about such a case is what Art. I power gives Congress the power to punish entirely foreign conduct with no U.S. nexus.

I think he's right, at least as an original matter. The key conclusion is that material support for terrorism is not an offense against international law. If that's true, then the matter lies outside Congress' "define and punish power." Congress cannot "define" something as an offense against the law of nations that is not, in fact, an offense against the law of nations. (See this post on the related Bellaizac-Hurtado case from last year).